Blair Hornstine
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Below is the official Court Decision involving Blair and the Moorestown Public Schools and their then-Superintendent Paul Kadri.  In order to clearly understand the decision the word plaintiff has been modified for easier reading for laypersons.  The words in brackets depict the changes.

Select Section->    1->Blair Hornstine: Intro    2->Blair Hornstine: Facts and Procedural History    3->Blair Hornstine: Defendants Motion to Dismiss    

4->Blair Hornstine: Entitled to Temporary Restraints    5->Blair Hornstine: Conclustion

 

[BLAIR HORNSTINE] IS ENTITLED TO TEMPORARY RESTRAINTS



Having denied defendants' motion to dismiss, I now turn to the merits of [Blair Hornstine]'s application for temporary restraints. [Hornstine] petitioned this Court for a preliminary injunction enjoining the Board from discriminating against her based on her disability by adopting and retroactively applying to her the proposed amendment to the Board's current valedictorian policy. While the Court does not have jurisdiction to enjoin the Board from modifying its policies, [Hornstine] properly contends that this Court has jurisdiction to enjoin the Board from retroactively applying this amendment to her because she is likely to succeed on her discrimination claims.

There are four factors a court must consider in deciding whether to issue an injunction:

1. Whether … [Blair Hornstine] has shown a reasonable probability of success on the merits;

2. Whether … [Blair Hornstine] will be irreparably injured by denial of the relief;
 
3. Whether granting the preliminary relief will result in even greater harm to the [defendants]; and

4. Whether granting the preliminary relief will be in the public interest.

Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132, 140 (3d Cir.2000) (citing Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 879 (3d Cir.1997) (quoting Am. Civ. Lib. Union v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir.1996) (en banc))). As the following analysis reveals, an injunction is warranted in this case.

A. Likelihood of Success on the Merits

[Blair Hornstine]'s discrimination allegations are two-fold. First, [Hornstine] asserts that Superintendent Kadri's disparate treatment of her on account of her disability constitutes disability-based discrimination prohibited by both Section 504 and the ADA, for which both Kadri and the Board may be held liable. Second, [Blair Hornstine] asserts that the retroactive application of the amendment drafted by Kadri and proposed to the Board would constitute discrimination under the same Acts. [FN10] To protect against this potential harm, [Hornstine] seeks a preliminary injunction. [Hornstine’s] request is granted for the following reasons.

FN10. In light of the active role that Superintendent Kadri played in investigating [Blair Hornstine]'s curriculum and in drafting and proposing the policy amendment, the Board may consider itself in a different posture from Kadri in terms of liability. Therefore, I take care in this portion of the opinion to differentiate between these two defendants as appropriate.

Section 504 and the ADA "provide a coherent framework and consistent and enforceable standards for the elimination of discrimination against persons with disabilities." Guckenberger v. Boston Univ., 974 F.Supp. 106, 133 (D.Mass.1997) (citing Thomas v. Davidson Academy, 846 F.Supp. 611, 620 (M.D.Tenn.1994)). The pertinent text of Section 504 is as follows:

No otherwise disabled qualified individual with a disability in the United States ... shall, solely by reason of his or her disability, be excluded from the participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....20 U.S.C. § 794(a).

In the education context, this language protects special needs students from being treated disparately on account of their disability. See Weixel, 287 F.3d at 149 (analyzing ADA and Rehabilitation Act claims alleging discrimination by school administrator who refused to place disabled student in honors-level curriculum); Hoot v. Milan Area Schl., 853 F.Supp. 243, 251 (E.D.Mich.1994) (analyzing ADA and Rehabilitation Act claims alleging discrimination by high school athletic association against special needs student in its decision to prohibit student from participating in sports activities). The ADA prohibits discriminatory conduct in the same fashion and is construed in harmony with Section 504. See Doe v. County of Centre, PA, 242 F.3d at 446 (stating courts should "construe the ADA to grant at least as much protection as provided by ... the Rehabilitation Act."); Weixel, 287 F.3d at 146 n. 5. Therefore, the ensuing discussion will apply to both Acts.

To establish a prima facie case under Section 504, … [Blair Hornstine] must show that: (a) she is a handicapped individual; (b) she is otherwise qualified for participation in the program; (c) the program th[at] [Blair Hornstine] is challenging receives federal financial assistance; and (d) she was subjected to discrimination under the program solely on account of her disability. Nathanson v. Med. College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir.1991). Defendants do not contest the first three of these four requirements, and therefore, the only issue here is whether the retroactive application of the proposed amendment to [Blair Hornstine] would constitute discrimination on account of her disability.

In Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the U.S. Supreme Court addressed what it means for an individual to be discriminated against under Section 504. The plaintiffs in Alexander were disabled medicaid recipients who brought a class action seeking declaratory and injunctive relief under Section 504 for the allegedly discriminatory acts of the State of Tennessee in reducing the number of days for which the state's medicaid program would pay hospitals on their behalf. The Court characterized plaintiffs' theory as one of disparate impact and, while recognizing that such a theory was appropriate under Section 504, went on to hold that plaintiffs had not shown that the discriminatory impact they allegedly suffered was a result of discrimination based on their disability. Id. at 303, 105 S.Ct. 712; see also Helen L. v. DiDario, 46 F.3d 325, 336 (3d Cir.1995) (discussing Alexander). In reaching this conclusion, the Court found it important that the reduction did not have a "particular exclusionary effect on the handicapped." Alexander, 469 U.S. at 302, 105 S.Ct. 712. Instead, the reduction was "neutral on its face, [did] not distinguish between those whose coverage will be reduced and those whose will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having." Id.

The notion that a neutrally applicable rule does not constitute discrimination under Section 504 was further explored in Timothy H. v. Cedar Rapids Comm. Schl. Dist., 178 F.3d 968 (8th Cir.1999). In that case, a special needs student brought suit under Section 504, alleging that she was denied the benefit of her school district's intra-district transfer program on account of her disability. The defendant school district had admitted the plaintiff into the transfer program, but required her to provide her own transportation in order to participate in it. Id. at 972. The Eighth Circuit held that the school district's transportation policy was not discriminatory because the policy was neutrally applicable to all students regardless of disability and "unrelated to disabilities and misconceptions about them." Id.

At first glance, these precedents might suggest that here the Board's proposed amendment does not constitute discrimination under Section 504 because it appears to be neutrally applicable to all students. The proposed amendment neither directly references persons with disabilities nor accommodations made to them:
 
In determining the recipients of [the awards of valedictorian and salutatorian], the Board may review the program of study, manner of instruction, and other relevant issues, and in its discretion, with the assistance of the administration, may designate multiple valedictorians and/or salutatorians to ensure that all students have an equal opportunity to compete for these awards. Kadri Cert. at ¶ 35.

[Blair Hornstine]'s challenge, however, is not as to the policy on its face, but as to the retroactive application of the policy to her. Indeed, the circumstances underlying the proposal to amend the Board policy as well as the formulation of the amendment, make clear that any application to [Hornstine] would be based on her disability.

Defendants do not contest that the proposed modification to the Board's valedictorian policy is a direct result of complaints Kadri received from students and their parents that these students had not been "provided equal opportunities to earn the [valedictorian and salutatorian] awards, and that accommodations were provided, in a disparate manner, between students." Kadri Cert. at ¶ 7. Furthermore, defendants admit that Kadri interpreted these comments to be directed toward [Blair Hornstine]. Kadri Cert. ¶¶ 7-8. Kadri avers that, in response to these complaints, he conducted an investigation into [Blair Hornstine]'s educational experience and performance at Moorestown, which included reviewing [Hornstine]'s transcript and comparing it to the transcripts of the three students whose weighted grade point averages most closely approached that of [Blair Hornstine]'s. Kadri concluded that two of the three students "had not been afforded the accommodations which [Blair Hornstine] enjoyed" and that those students "would be negatively affected by those accommodations" in that "they may not be considered for one or either of the graduation awards because of differences in the weighted averages caused, at least in part, by the accommodations provided to [Blair Hornstine]." Id. at ¶ 34. Kadri then recommended that the Board adopt the challenged amendment with the full expectation that it would be in effect for the selection of valedictorian for the 2002-03 school year. Id. at ¶ 35.

Given the historical context of this amendment and Kadri's expectation that it will go into effect before graduation, more than sufficient evidence exists to establish that the Board's proposed action was intended and designed to have a particular exclusionary effect on [Blair Hornstine] because of her disabled status. Cf. Timothy H., 178 F.3d at 972 (finding no discrimination where there was "no evidence that the [defendant's policy] was formulated or implemented with disabilities in mind."). Accord In the matter of Prince George's Co. Public Schls., 1998 EOHA LEXIS 22, *16 (March 17, 1998) (United States Department of Education ruling employing "as applied" analysis in holding that neutrally-applicable policy was discriminatory). [Blair Hornstine] has presented compelling evidence through Kadri's own words and actions which suggests he believed that she received an unfair advantage over other students on account of her disabled status and that, to right the imbalance, her accomplishments should be discounted. See Kadri Cert. ¶¶ 7-8, 34-35. [Blair Hornstine] aptly summarizes the inference that can be drawn from Kadri's actions: "[r]ather than being lauded for her significant academic accomplishments, the [imposition of] co-valedictorian status under these circumstances will serve only to highlight the fact that due to her disabling conditions, defendants do not consider her achievement to be on par with or comparable to that of a non-disabled student." Brief of Pl. in Support of Order to Show Cause at p. 4.

Defendants' targeted action here is similar to that in Doe v. County of Centre, PA, 242 F.3d 437 (3d Cir.2001). In Doe, the parents of an HIV-infected child were denied the opportunity to serve in the County of Centre's foster parent program on account of the HIV-infected status of their eleven year-old son, who lived with them. Upon learning of plaintiffs' son's HIV-status, the county's Children and Youth Services employees voiced their concern to the County Board that he might infect any foster children placed in the parents' home. Id. at 443. In direct response to the plaintiffs' situation, the Director of Children and Youth Services developed a policy, which the County Board adopted, providing that when someone living in a potential foster home has a "serious infectious disease," only children with the same "serious infectious disease" could be considered for placement in that home. Id. at 444. The only means by which foster parent applicants could avoid the implications of this policy was to sign an informed consent form and "voluntarily agree to release information to the parents of the incoming foster child that the foster family has been diagnosed with a specific serious infectious disease." Id. Because plaintiffs refused to sign the informed consent form and consent to the disclosure of their son's HIV-status, their application was denied. Id. at 445.
The Third Circuit ruled that the Board's application of the infectious disease policy to the plaintiffs in Doe was discriminatory under Section 504. In its view, the fact that the policy was specifically directed at the parents of HIV-positive individuals rendered it discriminatory towards those parents. See id. at 447. Likewise, here, any retroactive application of the valedictorian amendment to [Blair Hornstine] would constitute prohibited disability-based discrimination because it was specifically designed, and will be implemented, for the purpose of requiring [Hornstine], who has been granted certain accommodations on account of her disability, to share the valedictorian award solely because of the accommodations she rightfully received from the Board.

This Court's finding of discrimination is further supported by circumstantial evidence offered by [Blair Hornstine]. With the help of supporting certifications, and, in some cases, simple logic, [Blair Hornstine] has substantially refuted each of defendants' stated justifications for their actions. The fact that the veracity of each of defendants' justifications has been called into question suggests that the proposed amendment is discriminatory despite its neutral language. See Davis v. Francis Howell Schl. Dist., 138 F.3d 754, 756 (8th Cir.1998) (suggesting that plaintiff may show discrimination by calling into question the truthfulness of a defendant's stated reasons for its actions); Grube v. Bethlehem Area Schl. Dist., 550 F.Supp. 418, 424 (E.D.Pa.1982) (finding discrimination, in part, based on challenge to accuracy of defendant's stated justification).  Kadri's numerous calculations of [Blair Hornstine]'s weighted G.P.A. based upon hypothetical curricula he crafted for her further shows the discriminatory intent underlying his actions. His calculations suggest that her weighted G.P.A. would have been only five thousandths of a point less than that of the intervenor. Kadri. Supp. Cert. at ¶¶ 12-13. This difference belies Kadri's contention that the proposed amendment was designed to remedy a "fundamental unfairness." Defendants' Opposition to Order to Show Cause at 9.

Additionally, intervenor's counsel implied at oral argument that the proposed amendment is merely an attempt to redefine the valedictorian opportunity to include only grades from courses taken in-school, or to favor such grades over those earned by students receiving homebound instruction. See Transcript at pp. 62-63. As noted by the Supreme Court in Alexander, "[a]ntidiscrimination legislation can obviously be emptied of meaning if every discrimination policy is 'collapsed' into one's definition of what is the relevant benefit." Id. at 301, 105 S.Ct. 712 (quoting Brief for United States as Amicus Curiae in that case). Therefore, this sort of approach would inappropriately discriminate against students entitled to home instruction as an accommodation under the IDEA. Moreover, such an action would have the effect of diluting the affirmative rights granted special needs students under Section 504 and the IDEA--rights that were deemed necessary by Congress in order to ensure that special needs students could compete with their non-special needs counterparts on an equal basis. See id. at 304, 105 S.Ct. 712; 34 C.F.R. § 104.33.

That [Blair Hornstine] has presented sufficient evidence to support a finding of discrimination is further supported by 34 C.F.R. § 104.4, which defines the types of discrimination prohibited under Section 504. Section (b)(vii) of this provision prohibits actions that "[o]therwise limit a qualified [disabled] person in the enjoyment of any right, privilege, advantage or opportunity enjoyed by others receiving an aid, benefit, or service." This concept is further delineated by section (b)(4)(ii), which explicitly prohibits entities from "utiliz[ing] criteria or methods of administration ... that have the purpose or effect of defeating or substantially impairing accomplishment of objectives of the recipient's program or activity with respect to handicapped persons." Taken together, these provisions stand for two key propositions: (1) that disabled persons are entitled to an equal opportunity to participate or benefit from services provided non-disabled persons; and (2) once such a service is provided to a disabled person, that person has a right to the full enjoyment of that service, including its rights, privileges, advantages, and opportunities.

Here, defendants put forth their best efforts to afford [Blair Hornstine] an equal opportunity to become Moorestown High School's valedictorian. There is no dispute between the parties that [Blair Hornstine] was afforded the educational services to which she was entitled under the IDEA, and that, with the help of these services, [Hornstine] earned the valedictorian award. Where defendants have failed [Blair Hornstine] is with respect to her full enjoyment of this award. Defendants' proposed amendment would have the effect of defeating or substantially impairing this accomplishment.
The Federal Office of Civil Rights ("OCR") letter ruling titled Letter to Runkel, 25 IDELR 387 (Sept. 30, 1996), further suggests that the retroactive application of the proposed amendment to [Blair Hornstine] constitutes discrimination under Section 504. Letter to Runkel addressed the question of what criteria should apply to the grading schemes of students with disabilities. This letter, which is entitled to deference as an opinion expressed by the administrative agency in charge of ADA enforcement in school settings, see Chevron v. Nat'l Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), characterizes Section 504 as "requir[ing] that with respect to grades, class ranking, honor rolls, graduation, and diplomas, students with disabilities must be treated the same as all other students." Runkel, 25 IDELR 387 at 2. The agency additionally clarified in the letter that a special needs student's grades should not be "discounted ... or otherwise depreciated" based solely on the student's disabled status. By contrast, the stated effect of defendants' proposed amendment is to subject [Blair Hornstine]'s grades to heightened scrutiny-scrutiny not applied to non-disabled students. In addition, as noted by the OCR letter ruling, any differential grading standards should be specified in a special needs student's IEP. See id. at 1. Here, again, defendants' proposed action contravenes the agency's pronouncement because [Blair Hornstine]'s IEP states that defendants' standard grading policy shall apply to her courses.

I now address intervenor's citation to PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) and suggestion at oral argument that it is appropriate for a school board to consider whether a student has been afforded an unfair advantage, on account of accommodations mandated by the IDEA, when fashioning its valedictorian policy. I again note that the Board may change its policy so long as it is prospectively applied. The question here is whether the Board may retroactively apply a policy clearly intended to discriminate against [Blair Hornstine]. In that connection, Martin actually supports the outcome in this case.  Martin, a disabled professional golfer, filed suit under the ADA alleging that the PGA Tour, Inc. ("PGA Tour") discriminated against him by refusing to accommodate his disability by not allowing him to use a golf cart to transport himself from one tee to the next during the latter portion of a tournament. It was undisputed that Martin suffered from Klippel-Trenaunay-Weber Syndrome and, as a result, could not walk the final rounds of an 18-hole course. Id. at 668, 121 S.Ct. 1879. PGA Tour argued before the Supreme Court that it was not required to so accommodate his disability because such an accommodation would fundamentally alter the nature of the golf game by granting him an unfair competitive advantage over his non-disabled competitors who would likely suffer more fatigue from having to walk the last few rounds. [FN11] Id. at 669-70, 121 S.Ct. 1879.

FN11. Although PGA Tour initially denied Martin's request for an accommodation, the district court entered a preliminary injunction which required PGA Tour to allow Martin to use a cart. That court later ruled for Martin at the conclusion of a bench trial and PGA Tour appealed this ruling to the Supreme Court.

In ruling for Martin, the Supreme Court made several noteworthy observations which I find instructive here. First, the Court commented that "golf is a game in which it is impossible to guarantee that all competitors will play under exactly the same conditions or that an individual's ability will be the sole determinant of the outcome. For example, changes in the weather may produce harder greens and more head winds for the tournament leader than for his closest pursuers. A lucky bounce may save a shot or two .... [P]ure chance may have a greater impact on the outcome of an elite golf tournament than the fatigue resulting from the enforcement of the walking rule." Id. at 687, 121 S.Ct. 1879. Second, the Court noted that expert testimony presented by Martin, which established that the fatigue from walking during one of PGA Tour's 4-day tournaments was not significant, effectively undermined PGA Tour's position. Id. These facts, among others, led the Court to conclude that allowing plaintiff to use a golf cart would not grant him an unfair competitive advantage and, therefore, that PGA Tour's refusal to accommodate him was discriminatory. Id. at 690, 121 S.Ct. 1879.
As in a professional game of golf, it is impossible to guarantee that a student's educational abilities will be the sole determinant of academic success in a highly regarded and competitive high school. Teachers employ different grading standards, even those who teach the same course. [FN12] Indeed, grading itself is often subjective and, thus, the same teacher may grade differently two students in the same class who are performing substantially at the same level. This is particularly true when the students are gifted and the distinction between performances is slight. Students have different technological support available to them in their homes, or may enjoy the benefit of an older sibling or parent to assist them. The permutations are endless; the playing field for students rarely is the same. Furthermore, as described above, the specific allegations of unfair competitive advantage alleged by defendants have been substantially refuted by [Blair Hornstine]. Just as the disabled golfer in Martin did not receive an unfair competitive advantage from his accommodation, neither did [Blair Hornstine] receive an unfair competitive advantage from her accommodation. This Court is convinced that [Blair Hornstine] has presented sufficient evidence that she is likely to succeed on her discrimination claims under the ADA and Section 504 because she did not receive an unfair competitive advantage on account of her accommodations under the IDEA.
FN12. The Court is cognizant of defendants' argument that [Blair Hornstine] was able to earn an A+ in AP U.S. History as taught by the home instructor whereas her peers who completed the course in school were unable to earn the same grade because the in-class teacher has never granted an A+ to a student. In contrast, [Blair Hornstine]'s AP Calculus home instructor appears to have graded [Blair Hornstine] more stringently than her in-class teacher. See Nothdurft Cert. at ¶¶ 5-10. These examples buttress this Court's finding that individual teachers often employ different grading standards.

Additionally, rulings by the New Jersey Commissioner of Education further reveal the weakness of defendants' position. The case of Shankar v. Board of Education of the City of New Brunswick, Middlesex County, OAL Dkt. No. EDU 3848-89 (1989) (unpublished), cited by defendants, in fact supports [Blair Hornstine]'s argument that the Board should not be permitted to name multiple valedictorians. See also F.J.T. v. Bd. of Ed. of the City of Burlington, OAL Dkt. No. EDU 4545-91 (1991) (as modified on appeal to Commissioner of Education) (holding that school board must follow established board policy). In Shankar, the senior in New Brunswick high school with the highest G.P.A. in his class, Amitabh Shankar, believed he would be named valedictorian pursuant to the current school policy. However, during his senior year, the New Brunswick Board of Education Superintendent sought to have the Board amend its policy to establish a three year school residency requirement for all those eligible for the award. Id. at 1994. Since Shankar had only attended the school for two years, he was informed that he would not be valedictorian. Id. at 1982. He brought an action before the New Jersey Office of Administrative Law [FN13] seeking an order directing the Board to name him valedictorian. Id. at 1978. The Commissioner of Education found that the Board had not formally adopted the residency policy, and in any event, the Board may not retroactively apply conditions upon a pupil that will affect him without proper notice. Such notice could only have been provided following formal adoption of the requirements by the Board to all students in the high school at the time they entered [the school], through a uniform notification device, such as the student handbook. To conclude otherwise would be to endorse after-the-fact application of a procedure and could result in situations like the instant matter. Id. at 1994. The Commissioner stressed that any residency requirement for the award of valedictorian "may only be carried out after all students have been apprised of such policy in a uniform and prospective manner." Id. at 1995 (emphasis added). Thus, any new policy could not apply retroactively to Shankar and, accordingly, the Commissioner directed the Board to name Shankar valedictorian. The Commissioner also directed the Board to name as co-valedictorian the student with the highest G.P.A. who had attended the school for at least three years, in part because the Board had in effect prematurely designated her valedictorian, and thus, at that point, it would have been unfair to strip her of that award. Id. at 1990-91; 1994-95. [FN14]

FN13. In Shankar, the OAL was the proper forum to resolve the student's complaint, which implicated only Board policy and did not state any ADA or Rehabilitation Act claims. See Balsley, 117 N.J. at 441-42, 568 A.2d 895

FN14. In this case, the Moorestown Board of Education has not publically designated K.M. as valedictorian; it has simply informed him that he is being "considered" for the award. Thus, this Court has the opportunity to act on this TRO to prevent the Board from taking such action.

As in Shankar, the Board in this case intends to apply a new valedictorian policy retroactively to Ms. Hornstine. She has worked tremendously hard throughout her four years at Moorestown High in order to distinguish herself as the valedictorian, in spite of her disability. The student handbook memorialized the policy that was in effect for her entire tenure at the school: that the student with the highest seventh semester weighted G.P.A. would be named the sole valedictorian. Defendants now seek to diminish her award by naming another, non-disabled valedictorian, pursuant to a policy that is to take effect after [Blair Hornstine] has already completed seven semesters. I agree with the Commissioner's decision in Shankar--any new valedictorian policy can not be applied retroactively to [Blair Hornstine]. Id. at 1995.

B. Irreparable Harm

In order to gain injunctive relief, [Blair Hornstine] must show that she will be irreparably harmed without it. Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). Irreparable harm is shown when money damages can not adequately compensate [Hornstine]'s injuries. See id.

In T.M. v. Mercer County Junior & Senior High Schl., OAL Dkt. No. EDS 4317- 02S, 2002 WL 1589870 (2002) available at http://www.lawlibrary.rutgers.edu/oaldecisions/ initial/eds04317-02 1.html (visited May 5, 2003), a special needs student challenged his local school board's decision to prohibit him from attending his high school graduation ceremony and from marching in the processional for disciplinary reasons. Administrative Law Judge Israel D. Dubin reasoned that:

[m]ore so than their regular education counterparts, special needs students derive a great deal of satisfaction and substantially increase their self-esteem by participating in such ceremonies. It sends a very positive message that even with all of the frustrations and missteps they have encountered along the way, they were able to accomplish a very difficult task. Moreover, a graduation ceremony is an event that, once missed, cannot be replaced. Id. at *3.

Judge Dubin concluded that missing a high school graduation ceremony is an irreparable injury, since the student can not be made whole with financial compensation. Id.

In this case, it is undisputed that [Blair Hornstine] persevered through the hardship of her disability to not only graduate, but to graduate first in her class. Instead of taking pride in her fine example, defendants seek to strip [Blair Hornstine] of the distinction of sole valedictorian. Superintendent Kadri has made no secret of the fact that he believes [Blair Hornstine] should not be the only valedictorian because she was granted accommodations on account of her disability. This was the message he sent to the senior class in February 2003, when he addressed his concerns to them about the inequality of the current valedictorian policy. If the Board were to name another valedictorian along with [Blair Hornstine], it would be sending the message loud and clear: "we have two valedictorians this year--a disabled one, and a non-disabled one." This would diminish the award which [Blair Hornstine] has worked so hard to attain. Instead of honoring her as the student who earned the highest grades in her class in spite of her disability, the Board would be demeaning her by insinuating that her grades are not as meaningful because she rightfully received accommodations on account of her disability.

If [Blair Hornstine] were forced to accept her award along with a non-disabled student, the stigma would likely be unshakable. [Hornstine] would doubt her own accomplishments, and question the significance of being the "disabled valedictorian." Just as Judge Dubin in T.M. reasoned that "a graduation ceremony is an event that, once missed, cannot be replaced," id., so too is the conferring of a valedictorian award at [Blair Hornstine]'s graduation a once-in-a-lifetime event. Defendants have only one chance to grant [Blair Hornstine] the distinction she deserves, without diminishing it by treating her differently than her non-disabled classmates. If [Blair Hornstine] is not the sole valedictorian, she will suffer irreparable harm that cannot be compensated by money damages. Accord Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 913 F.Supp. 663, 667 (D.Conn.1996) (school policy allowing a disabled student to participate in school swim meets without being able to earn points for the team constituted differential treatment which would diminish the student's sense of parity with his teammates and result in irreparable harm), appeal dismissed as moot by 94 F.3d 96 (2d Cir.1996).

C. Granting the Temporary Restraint Will Not Result in Greater Harm to the Non-moving Party

In light of the above analysis, there can be no contention that granting [Blair Hornstine]'s application for temporary restraints will result in greater harm to the non-moving parties in this action. Defendants have not identified any harm to themselves other than that which may be visited upon the students who cannot share in the honor of valedictorian. Thus, it is K.M.'s purported harm which must be addressed. As to the nature of his harm, K.M. states "it is my position that, even accepting that Ms. Hornstine was disabled in some way, [FN15] and therefore, entitled to the benefits she received, there is no legal basis upon which I should be excluded from enjoying the benefits that I have achieved without any special privileges or benefits being conferred upon me." Certification of K.M. in Support of Notice of Motion to Intervene at ¶ 17. K.M.'s argument simply does not carry the day. K.M.'s premise that [Blair Hornstine] has received "special privileges or benefits" reflects a misunderstanding of the IDEA, and the accommodations [Blair Hornstine] was entitled to receive pursuant to the Board-approved IEP. Furthermore, as pointed out by [Hornstine]'s counsel at oral argument, [Hornstine]'s in-school classmates receive benefits she cannot enjoy: [Blair Hornstine] cannot participate in class discussions and share in the ideas of her classmates and teachers, she does not get the benefit of cooperative learning, and receives only half the teaching hours that regularly-schooled students enjoy. See L. Hornstine Cert. at ¶ 11 n.1. Finally, if I were to deny [Blair Hornstine]'s application, I would be permitting the non-moving parties to engage in discriminatory conduct. Accordingly, I find that the imposition of the injunction will not result in a greater harm to the non-moving parties.

FN15. This parenthetical comment is particularly troubling because it underscores the distasteful tenor of this dispute. While there is no question that [Blair Hornstine] is disabled and entitled to accommodations under the IDEA, see generally Weixel, 287 F.3d at 146-50 (holding that students suffering from chronic fatigue syndrome and other physical disabilities are entitled to protection under the IDEA, Rehabilitation Act, and ADA to the same extent as learning-disabled students), nonetheless, public comment, which obviously infected Superintendent Kadri, unfairly implies the contrary.

D. Granting the Preliminary Relief Will Be in the Public Interest.

The IDEA mandates that all students receive a free and appropriate public education. In this connection, defendants afforded [Blair Hornstine] this right through her IEP. [Hornstine]'s IEP was constructed, ratified, and implemented by defendants. Defendants belatedly seek to characterize [Blair Hornstine]'s remarkable academic success as less than it is because of her IEP. Permitting defendants to diminish [Blair Hornstine]'s accomplishments by awarding multiple valedictorian and salutatorian awards will not be in the public interest.

Without the imposition of temporary restraints, defendants would be discriminating against [Blair Hornstine] because of her disability. Such conduct should not and cannot be tolerated by society. "New Jersey 'prides itself on judging each individual by his or her merits' and on being 'in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.' " Boy Scouts of America v. Dale, 530 U.S. 640, 664, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (quoting Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 80, 389 A.2d 465 (1978)). Indeed, the imposition of temporary restraints furthers the goal of eradicating discrimination and is, therefore, certainly in the public interest.

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